In 2011, Montana expanded its DUI laws by adding a new entry to the list: Aggravated DUI. Defined at Section 61-8-722, MCA, the offense of Aggravated DUI piggybacks on the other DUI offenses and provides for enhanced penalties when certain factors are present. Under the law, a person commits the offense of aggravated driving under the influence if the person is in violation of 61-8-401 (DUI), 61-8-406 (DUI per se), or 61-8-411 (DUI marijuana) and at the time of the offense:

(a) The person’s blood alcohol concentration is 0.16 or more;

(b) The person is under the order of a court or the department to equip any motor vehicle the person operates with an approved ignition interlock device;

(c) The person’s driver’s license or privilege to drive is suspended, cancelled, or revoked as a result of a prior violation of 61-8-401, 61-8-402, 61-8-406, or 61-8-411;

(d) The person refuses to provide a breath or blood sample as required in 61-8-402 and the person’s driver’s license or privilege to drive was suspended, cancelled, or revoked under 61-8-402 within 10 years of the commission of the present offense; or

(e) The person has one prior conviction or pending charge for the violation of 45-5-106, 45-5-205, 61-8-401, 61-8-406, 61-8-411.

So, if you’re convicted of DUI and one of the factors listed above as (a)-(e) exist, you can be sentenced for Aggravated DUI. A person convicted of the offense of aggravated driving under the influence shall be punished by:

(a) a fine of $1,000; and

(b) a term of imprisonment of not more than 1 year, part of which may be suspended, except for the mandatory minimum sentences set forth in 61-8-714

If a suspended sentence is imposed, the sentencing court may order additional restrictions, such as:

(a) the person is subject to all conditions of the suspended sentence imposed by the court, including mandatory participation in drug or DUI courts if available;

(b) the person is subject to all conditions of the 24/7 sobriety and drug monitoring program if available and if imposed by the court; and

(c) if the person violates any condition of the suspended sentence or any treatment required, the court may impose the remainder of any imprisonment term that was imposed and suspended.

Practically, what does this mean? If a person is convicted of DUI per se and the state proves that his blood alcohol level was 0.16 or higher at the time, he can be punished under the Aggravated DUI statutes. Ordinarily for DUI per se, the maximum sentence would be six months. But because aggravated DUI applies, the maximum sentence doubles to one year. So, the offender can be given a one year sentence with some portion of it suspended. The mandatory minimum would be 24 hours, so if the court suspends all but 24 hours that would leave a suspended sentence of 364 days. In addition to any other conditions imposed on the suspended sentence, the Aggravated DUI statute specifically allows the court to require that the person be subject to the 24/7 program for that year. This will require invasive and expensive alcohol monitoring for the duration of the suspended sentence.

The big takeaway here is that conviction for Aggravated DUI is a much more serious offense. DUIs should never be taken lightly, but this is another level beyond that. You risk being under court supervision for a year and being subject to alcohol monitoring (at your expense) for that entire time. If you’ve been charged with Aggravated DUI (or think you qualify under the factors listed above) I’d encourage you to immediately discuss the situation with a Montana DUI lawyer who can evaluate your specific circumstances and give you the right advice.

If you’d like to talk to me about your case, please call (406) 752-6373.

I’ve talked before you about how your total number of DUIs is calculated. What people often forget is that all your past DUIs are fair game, even when they happen out of state. Often defendants will be shocked to find themselves charged with a second or third offense, thinking that because it happened in Vermont is doesn’t count in Montana. It does.

But, there’s a flip side to that rule. The conviction must be for a DUI-equivalent offense, and it must be constitutionally firm. Even for most lawyers, the term constitutionally firm (at least in this context) may be a bit vague. However, the Montana Supreme Court recently had a chance to address the issue in State v. Nixon (2012 MT 316).

On September 13, 2010, Kennth Nixon was charged with felony DUI for his fourth or subsequent DUI. Among his past convictions was a 1992 DUI conviction in Ravalli County Justice Court. Nixon challenged that conviction as constitutionally infirm. Specifically, he said, that the Ravalli County Justice Court failed to obtain a valid and express waiver of the right to counsel prior to taking his guilty plea. Nixon submitted an affidavit in support of the argument. It said:

On December 24, 1992 I pled guilty to DUI in Ravalli County Justice Court [.] I was indigent and unable to retain a private attorney. I was not represented by a lawyer in this proceeding. Prior to entering my guilty plea on December 24, 1992 I was not expressly advised of my right to counsel and I did not expressly and explicitly waive that right prior to pleading guilty.

The District Court (his trial court) found that the conviction was firm, and found that Nixon had failed to meet his burdent o come forward with an affirmative defense establishing that the 1992 conviction was obtained in violation of the Constitution. Following that decision, Nixon entered a no contest plea to the felony DUI charge, and appealed.

The Montana Supreme Court explained that a constitutionally inform prior conviction used for enhancement purposes amounts to sentencing based upon misinformation, which is prohibited by the Due Process Clause of Article II, Section 17 of the Montana Constitution. The Court uses a three-step framework for evaluating collateral challenges to prior convictions offered for sentence enhancement purposes:

1. a rebuttable presumption of regularity attaches to the prior conviction, and we presume that the convicting court complied with the law in all respects;

2. the defendant has the burden to overcome the presumption of regularity by producing affirmative evidence and persuading the court, by a preponderance of the evidence, that the prior conviction is constitutionally infirm; and

3. once the defendant has done so, the State has the burden to rebut the defendant’s evidence. There is no burden of proof imposed on the State to show that the prior conviction is valid, however. The State’s burden, rather, is only to rebut the defendant’s showing of invalidity.

A defendant can’t point to an ambiguous or silent record, but must produce affirmative evidence establishing that the prior conviction was constitutionally infirm. Affirmative evidence is evidence that demonstrates that certain facts actually existed at some point in the past – e.g., that an indigent defendant actually requested the appointment of counsel but counsel was actually refused. It takes more than ambiguous documents, self-serving and conclusory inferences, or forcing the State to prove the validity of the prior conviction (which is already presumed).

In reviewing Nixon’s affidavit, the Supreme Court reiterated that the defendant bears both the burden of production and persuasion. The burden of production requires the defendant to produce some evidence with establishes his claim. Nixon met that requirement. What he failed to do was persuade. Specifically, the Supreme Court looked to testimony by Judge Sabo, who was a judge in Ravalli County Justice Court at the time Nixon was sentenced. While she was assigned his case, it was actually Judge Sperry who took Nixon’s plea and sentenced him. Because Nixon failed to persuade the District Court, in the face of Judge Sabo’s contrary testimony, and because his own testimony included some uncertainty, the Supreme Court found that he had failed to carry the full burden imposed and denied his appeal.

This decision seems to contradict the Court’s prior decisions in State v. Howard (2002 MT 276) and State v. Walker (2008 MT 244). In Howard and Walker, the Court recognized that a defendant’s unequivocal and sworn statements that he did not waive the right to counsel constituted direct evidence which rebuts the presumption of regularity. In both cases the Supreme Court found that the defendants’ affidavits contained unequivocal and sworn statements that they did not waive their rights to counsel, and held that the defendants satisfied their burdens. However, the Court distinguishes Nixon from these cases based on State v. Maine (2011 MT 90). In Maine, the Court determined that the ultimate burden of proof (production and persuasion) and that he must prove it by a preponderance of the evidence.

In the end, Nixon’s felony DUI conviction was upheld. The District Court sentencing him to the Department of Corrections for a period of thirteen months, and ordered that if he successfully completed the WATCH program, the remainder of his thirteen months would be served on probation, followed by a five-year suspended sentence to the Department of Corrections.

Mark Haldane was convicted of driving under the influence of alcohol (DUI) at the conclusion of a jury trial in Bozeman Municipal Court. He appealed to the District Court for Gallatin County, which affirmed the trial court’s denial of his motion to suppress. Haldane then appealed to the Montana Supreme Court arguing that: 1) when he was stopped based on an obstruction to his temporary registration permit by snow and a trailer hitch, it was a violation of his constitutional right to be free from unreasonable seizure; 2) his trial counsel rendered ineffective assistance; and 3) his sentence violated due process because it was based on his indigency.

In Montana, officers may initiate a traffic stop on any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense. Section 61-3-301(1)(a), MCA, provides that “a person may not operate a motor vehicle … upon the public highways of Montana unless the motor vehicle … is properly registered and has the proper license plates conspicuously displayed on the motor vehicle.” Furthermore, § 61–3–301(1)(a), MCA, requires that the “license plate must be securely fastened to prevent it from swinging and may not be obstructed from plain view.” The statute defines “conspicuously displayed” as “obviously visible and firmly attached.”

Haldane argued that Montana’s weather and the prevalence of farm and other towing vehicles make it unlawful for law enforcement officers to effectuate a stop only because a temporary registration is obscured by snow and a ball hitch. He relied on concurrences by Justice Nelson in State v. Rutherford, 2009 MT 154, and State v. Cooper, 2010 MT 11. As Justice Nelson wrote in Cooper:

I continue to disagree with the proposition that, in this state, a license plate’s being obscured by the natural accumulation of the elements or driving conditions can constitute particularized suspicion for anything—except that Montanans often drive in foul weather and on foul roads.

However, the Supreme Court in this case rejected this analysis. Instead, it focused on case law establishing that a statutory violation alone is sufficient to establish particularized suspicion for an officer to make a traffic stop. And, the plain language of 61-3-301, MCA, requires that a license plate may not be obstructed from plain view and must be obviously visible. Under Montana law, a license plate obstructed by snow or a ball hitch is legally sufficient justification to authorize a traffic stop.

Haldane also argued that his sentence violated his due process rights because it was based on indigency. The State maintained that this argument had been waived because it wasn’t raised at the original sentencing, however the MT Supreme Court invoked the Lenihan exception which provides that an appellate court may review any sentence imposed in a criminal case if it is alleged that such sentence is illegal or exceeds statutory mandates, even if no objection is made at the time of sentencing.

In this case, the Court originally planned to sentence Haldane to six months with all but three days suspended. However, after it was revealed that Haldane was indigent and unable to make his payments, the Court increased his sentence to one year with all but three days suspended. Because his sentence was increased to the maximum sentence based on his inability to pay the fines and fees, it was a violation of due process.

Conviction for DUI in Montana has a number of ancillary consequences that most people aren’t aware of. One of the most significant is the automatic suspension of a driver’s license. Under section 61-5-208(2)(b)(i) of the Montana Code Annotated, a person convicted of a first offense of DUI or DUI per se shall have his or her license suspended for a period of six months. A person convicted for the second time within five years will have his or her license suspended for one year, and can not be granted a probationary license until 45 days of the 1 year suspension have passed. Also, the judge must recommend that the offender be issued a probationary license (however, it will be necessary that an ignition interlock device be installed in their vehicle).

A third or subsequent conviction of DUI within a five year period means a one year suspension of driver’s license, and a probationary license may only be issued after the offender has completed 90 days of the year long suspension. This also includes a requirement for the ignition interlock device.
Reinstatement of the license includes paying a $200 fine to the Motor Vehicle Division of the Montana Department of Justice. This applies whether or not a probationary license was issued. Many people convicted of a DUI forget this step, and end up accumulating Driving While Suspended charges later on, after assuming that their license was reinstated at the end of the suspension. If you’ve been convicted of DUI and aren’t sure whether you paid the reinstatement fee, a call to the Motor Vehicle Division might be a good idea.

A probationary license can fall under four different categories: Occupational Driving Only; Home to School and Return; Essential Driving only; or Daytime Hours Only.

Licenses restricted to “occupational driving only” may only be used by the licensee to travel to and from the regular place of employment, or in search of employment, by the most direct route from the residence in a period of time no greater than is reasonable under existing traffic conditions; and during work hours at the specific direction of the employer for purposes of carrying out assigned job related functions.
Licenses restricted to “home to school and return” may only be used by the licensee to travel between the residence and the school or educational institution in which the licensee is enrolled. Travel is only authorized immediately before and after regular school hours and must be by the most direct route between the residence and the school in a period of time no greater than is reasonable under existing traffic conditions. Driving to or from extracurricular activities is not allowed.

Licenses restricted to “essential driving only” may only be used by the licensee for occupational driving as described above; home to school driving as described above; and travel to and from the regular residence in a period of time no greater than is reasonable under existing traffic conditions for purposes related to maintenance of the household.
Licenses restricted to “daytime hours only” may only be used by the licensee to operate a motor vehicle from one-half hour before sunrise to one-half hour after sunset.

While these four options are described in the Administrative Rules of Montana, the rules also allow the Division to impose additional restrictions when appropriate. However, none of these restrictions can prohibit a driver from travelling to or from required alcohol treatment programs.

If you’ve been charged with a DUI, you are facing license suspension. While Montana is beautiful, it’s also spread out. Getting along with the ability to drive is a real hardship, and something you should consider when charged with an alcohol related driving offense. The best advice I can give you is to talk to an attorney about the possible outcomes, and see what options are available to mitigate these potential problems.

Almost every DUI I handle that doesn’t result in a not-guilty verdict or an outright dismissal includes a requirement that the defendant complete an approved ACT Program and complete any suggested follow-up treatment.

Currently in Kalispell, there is only one approved ACT Provider: Flathead Valley Chemical Dependency Clinic. As of today, they are charging $375 for the program. They can be reached by calling 756-6453 for the Kalispell office. They also have offices in Eureka, Libby, and Thompson Falls.

The next closest alternative for those of us in the Flathead is Western Montana Addiction Services, with offices in Missoula and Polson. In Missoula, they can be reached at 406-532-9800 and in Polson their number is 406-883-7310.

As a reminder, completing the ACT class is often a condition of a plea deal. If you have plead in a DUI case (or to reckless driving where the original charges were DUI) and agreed to enroll in the ACT program within a certain amount of time: MAKE SURE YOU DO IT. The last thing you want is to jeopardize your freedom because you didn’t get moving and make a phone call to take a class.

If you have any questions about the ACT Class or ACT Providers, please call me at 406-752-6373. I offer a free first meeting with people accused of DUI so you’ve really got nothing to lose.

Former California Congressman Duke Cunningham was known for being tough on crime while serving as a legislator. Now, he’s known for taking bribes – a crime for which he is serving 8 years in prison. In the abstract, being tough on crime (and particularly defendants) seemed easy to Duke. But now that he has personal experience, and has met the people his policies impacted (and the lives he ruined) Duke is singing a different tune.

“I didn’t know jack weenie about what people were going through in here,” Cunningham said in an interview this month with The San Diego Union Tribune.

It’s amazing what a little knowledge can do. The article says it well:

In an ideal world, of course, it wouldn’t take firsthand experience in a prison cell for someone like Cunningham to be able to empathize with those individuals who make up the U.S.’s massive prison population, which weighs in at a record-breaking 2.3 million souls. But having lived a life of privilege, spared even the indignity of having to go through airport security, Cunningham and other members of Congress typically never come in contact with the same criminal justice system as their constituents. Prison is for other people — bad people — not the political and economic elite, which makes it all the easier on one’s conscience to send people there. Not having experienced injustice at the hands of the system themselves, it’s easy to pretend those behind bars are all there because they’re guilty — and because they deserve to be there, damn it.

Here’s to hoping for ideal worlds. But I have a feeling that Duke’s revelation will have little impact on sentencing nationwide. But wars are fought one battle at a time, and you never know which victory will be decisive. So congratulations to Duke Cunningham for opening his eyes and seeing something uncomfortable but important. And here’s to hoping that we don’t need to send our entire congressional delegation to jail to bring about some changes.

A deferred prosecution is a type of plea bargain, and basically a contract with the Court where you agree to meet certain conditions in exchange for the Court agreeing to postpone prosecution of your case. If you complete all the requirements, your case will be dismissed and no conviction will be entered against you. Let that sink in for a minute. No conviction. Not for anything. You can see why deferred prosecutions are very appealing to Montana DUI defendants.

In a way, a deferred prosecution is like a bet with the Court. You are betting that you can go the required time without having any more legal troubles. If you win the bet, you get a great result. If you lose the bet, you generally get a worse result. Because not only do you have the original problem bearing down on you again, but you’ve also proven to the prosecutor that you can’t keep your nose clean for a relatively short period of time.

Especially for first time DUI defendants, this case is the only time they will face legal troubles in their lives. For them, a deferred prosecution is an excellent option, and exactly the sort of situation this was designed for. It allows the Court to supervise the person for a period of time and make sure they can stay out of trouble, but (assuming it works) allows the defendant to keep their record clean of a DUI.

Negotiating a deferred sentence in a Montana DUI can be a trick proposition and requires a thorough understanding of the law and procedures surrounding Drunk Driving charges. I offer a free consultation, what have you go to lose?

Upon conviction for a first DUI in Montana, the offender must be sentenced to a minimum of 24 consecutive hours in the county jail or a maximum of six months. Also, the offender must be fined a minimum of $300 and a maximum of $1,000. Any imprisonment beyond the 24 consecutive hours can be served under house arrest. The 24 hour minimum may be suspended if imprisonment poses a health risk or a danger to the offender’s mental well-being.

In addition to the penalties described above, the offender must attend a chemical dependency assessment and education course at an approved treatment program. The course is called the ACT program (Assessment Course Treatment). The offender may choose which ACT program to attend, but the assessment and course must be at a program approved by the Montana DPHHS.

If treatment is recommended by the ACT program and ordered by the Court, it may be provided by any certified chemical dependency counselor. The original court order must contain all the treatment required.

In Montana, a person’s first, second, and third conviction for DUI are misdemeanor offenses. This means that your case will generally be held in Justice Court. In Flathead County, the Justice Court is located on the second floor of the Justice Center.

The fourth and subsequent convictions are felonies, meaning that they must be heard in District Court, and not in Justice in Court. Justice Court is a County Court, with jurisdiction over whatever happens in the County. That means that if you are arrested for DUI in Kalispell, Whitefish, Columbia Falls, or Bigfork – you may end up in Flathead County Justice Court.

Make no mistake, Justice Court is a very real court with very real judges who can sentence you to very real jail time. Some people have the mistaken impression that Justices of the Peace only marry people. But as many DUI offenders in Flathead County can attest, a Justice of the Peace can also sentence offenders to jail time. As we’ve discussed before, even a first offense for DUI can carry up to six months in prison. That is why it is so important you protect yourself when accused of DUI in Flathead County. If you, or someone you know, has been charged with Drunk Driving, please call me today for a free consultation.

A plea agreement is a compromise between the prosecution and the defense. It typically involves the defendant pleading guilty to some charge (often a less serious one than that originally charged), in exchange for other charges being dropped and often a recommendation from the prosecutor regarding sentencing. For example, a defendant charged with DUI and an open container violation might plead guilty to reckless driving in exchange for having the DUI and open container charges dropped. This is just an example of a possible outcome.

In order to enter into a plea agreement, the defendant must be advised that 1) the Court is not bound by plea agreements; 2) if the Court rejects a plea agreement which calls for a specific recommendation jointly made by the prosecution and defense, the Court shall inform the parties, afford the defendant an opportunity to withdraw the plea, and advise the defendant that if the defendant persists in the guilty plea, the disposition of the case may be less favorable than the plea agreement.

However, if the plea bargain does not involve a recommendation by the prosecution (and only an agreement that the prosecutor will not oppose the defendant’s recommendation) – the Court does not have to allow the defendant to withdraw from a guilty plea.

You may have heard the adage that an oral contract is worth the paper that it is printed on, but in Montana – an oral plea bargain is binding. This can be helpful to those charged with DUI when the prosecutor makes an offer he later regrets. But it can be a problem when the defendant regrets his decision later. So remember, always think carefully and consult an attorney before entering into any sort of plea bargaining for Montana DUI.

Paul Sullivan, Esq.

Paul is a partner at Measure, Sampsel, Sullivan & O'Brien, P.C. in Kalispell, MT. He is an ivy-league educated, DUI Lawyer specializing in defending Montanans accused of Driving Under the Influence of Drugs or Alcohol. He represents clients across Montana in misdemeanor and felony charges, and license hearings.
Call 752-6373 today for a free initial consultation.